Download In his essay: “Law or Politics: Israeli Constitutional Adjudication as a

Gad Barzilai
Department of Political Science, Tel Aviv University.
Law is Politics:
Comments on ‘Law or Politics: Israeli Constitutional Adjudication as
a Case Study.”
In his essay: “Law or Politics: Israeli Constitutional Adjudication as a Case Study.”
Gideon Sapir is coping with some problems concerning adjudication of religious
issues. He presumes that there is a certain dichotomy that differentiates ‘law’ from
‘politics’, since the first deals with norms and the second with regulating and
balancing political branches. My theoretical perspective, however, is different and
critical.
Sapir’s article- in my reading- proves that law is politics in a sense that law
generates and embodies political and socioeconomic interests, identities, and
consciousness.
I will argue below that politics can not be differentiated from law,
and therefore can not respond to Sapir’s aspiration to de-politicize adjudication and to
monitor and hamper the effects of personal backgrounds and worldviews on judicial
rulings. From a critical perspective that law is politics, I intend to analyze some of
Sapir’s findings and arguments.
The subject matter of religious justices in supreme courts is particularly relevant to
countries where almost no institutional and constitutional separation between state
and religion prevails.
In countries like Israel that have not separated state from
religion, and have used religion as part of state nationality and legal ideology, the
background of the justices and their basic worldviews will most often be a reflection
and articulation of interactions between religion, state power foci, and state ideology.
Israeli Jewish political elite has used Orthodox religion to legitimatize the state, and
hence has used the non-separation of nationality and religion embedded in Zionism,
for their political purposes.
Hence, in the Israeli context, the religious background of religious background of
justices in their rulings.
On the other hand, in countries like the USA in which a
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formal institutional separation has largely prevailed the liberal-religious continuum
affects degree of pluralism but has less relevance for conflicts over state power. My
point goes further than claiming that the significant difference between the USA and
Israel is that the Israeli Supreme Court has a religious seat.
In countries like Israel
where religion, in its Orthodox interpretation, is a constitutive part of its nationality,
religious justices are part of the mechanisms of state control and especially the
religious justices articulate the dominance of Orthodoxy in public life. Hence, whilst
American models are useful to illuminate the Israeli case, the comparison between the
two countries might be misleading.
Israel is much more similar to countries like
Germany and Ireland than to the USA, since in these countries there is no
constitutional separation between religion, state, and nationality.
Sapir’s correctly expounds that there has been a religious seat in the Israeli Supreme
Court. The reason for it was political- getting legitimacy to the state was a crucial
effort in the 1950s when the ruling elite of Mapai were striving to co-opt the religious
Zionist camp into its political coalition. Ultra-Orthodox judges in the Supreme
Court have not been present and for two reasons.
First and foremost,
ultra-Orthodoxy has negated state legitimacy and ultra-Orthodox nominees in the
Supreme Court would have contradicted such an ultra-Orthodox ideology.
Second,
many ultra-Orthodox judges have lacked a formal legal education outside studies of
the Jewish Halacha.
In this context Sapir observations have focused only on one
aspect of state-religion tension in Israel; the one that concerns “Jewish and democratic
“ state. However, there is a more severe aspect, which concerns the controversy
between ultra-Orthodoxy and the state over the legitimacy of the Zionist enterprise
and its courts.
Sapir points correctly that when the principle of freedom of religion might endanger
the religious-secular status quo religious justices offer the narrow interpretation and
their secular counterparts offer the broader one.
begin with.
Admittedly this is very expected to
If the structure of the political regime is being taken into account, in
addition to the textual analysis alluded by Sapir, then one can easily comprehend why
a different hermeneutics based on the religious/secular background of the justice is
expected. Since every hermeneutics is about politics, the effect of the personal
background is much more understandable taking into consideration that every legal
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norm is shaped based on hermeneutics. Sapir illuminates another more intriguing
finding according to which religious justices may use a broader interpretation of the
principle of freedom of religion, when such hermeneutics serves the autonomy of
their own Orthodox community.
Following these findings two explanations should come to mind. The one is an
explanation of monopoly and the other is explanation of autonomy. The first has
been elaborated in Sapir’s article. The Orthodox establishment has monopolized
religious affairs of Jews in Israel.
The principle of freedom of religion has been used
in the Supreme Court by secular justices in order to confine such monopoly. Under
some spirit of liberalism in Israeli law, primarily since the mid 1980s, majority of
justices (i.e., the secular justices) have supported and upheld appeals that called for
imposition of limitations on such monopoly. The liberal political interest behind the
arguments of equality and non-coercion was to privatize religion and to diversify
ways of religious beliefs. The religious Orthodox hermeneutics is different, because
it aims to preserve the Orthodox monopoly that was crystallized in the 1950s, and has
become under attack with Israel cultural shift towards some liberalism in state law
particularly since the 1980s.
Yet, there is another crucial perspective that conceives the attempts of religious
Orthodoxy to preserve its autonomy facing the increasing invasion of liberalism into
its fabric of communal life.
In such cases religious justices are using broader
interpretations in which the principle of freedom of religion is used to justify their
opposition to liberal and non-Orthodox social forces like seculars and proponents of
the progressive and the observant movements. Such a sociopolitical context inside
and outside the legal text explains the hermeneutics that Sapir expounds in his article.
There is no direct line of influence between the judicial personal background of the
justice and his/her rulings, since the intercommoned context of liberal and non-liberal
communities is constitutive to any hermeneutics in the legal text itself.
The justices, whether secular, observant, or religious, do not enjoy the alternative of
law or politics, but rather they are agents of various political forces in law as part of
state law. Due to the majority of secular justices in the court, they support a liberal
judicial activism aimed to privatize religion and confine the Orthodox monopoly.
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The minority of religious justices will oppose such an activism unless it protects
communal religious autonomy. Furthermore, since the religious political parties in
the Israeli parliament enjoy a significant power, the religious community prefers to
decide issues in legislation and not through adjudication. Again, the controversy
over judicial activism in Israel is not only about different perceptions of the judicial
process, but rather it is about strongholds of influence in the political process.
The
personal background of the justices would have been rather meaningless without the
political context in which their personal judicial characterizations have been formed
and generated as part of conflicts over power in a multicultural setting of state and
society. Their rulings are the field in which such characterizations have been
articulated concerning specific issues under contention.
Since law is politics, and not an alternative to politics, Sapir’s assertion is correct:
“I.e., every justice adopts ad hoc the interpretation of the principle of freedom of
religion that accords, under the circumstances at hand, with his background.”
Institutional struggles, not only cultural issues, will be part of such circumstances.
Thus, when the possible reaction of the parliament against the court ruling might be
severe characterized by a counter-legislation, coalitions between secular and religious
justices are plausible.
It is expected that religious justices and secular justice will be
in some significant rivalry, but judicial coalitions might be established when the
secular majority opposes any intervention in legislation due to its fear of a possible
counter-judicial move by the parliament under the influence of the religious political
parties.
Following his findings Sapir turns to suggest legalistic solutions to politics in law.
How to confine, he wonders, the effects of personal background on judicial rulings?
The author aspires to find a balance of power that will confine personalities in law.
Since law is politics such an attempt might be invigorating and futile, at once.
Judicial activism as Sapir correctly assumes should not be taken for granted. Yet,
his findings are not connected to activism but point to importance of identities in law,
a fact that can not and should not be reduced. Judicial nominations as the author
correctly claims should be more publicly accountable and public hearings of
candidates to the Supreme Court have some benefits. Yet, it will make justice’s
worldviews more transparent and not less influential.
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Furthermore, since in Israel religious justices are expected to represent their sector,
public hearings might be a matter of formalities, nothing more, and nothing less.
Limitations over terms of judges might hurt the independence of the judiciary without
any relevance on the effects of their worldview.
Moreover, if a religious justice will
be reluctant to have his ideology being aired since he is fearful, it may damage the
democratic principle of judicial independence.
Sapir’s third suggestion to have a
political control over judicial interpretations is too vague and needs clarifications.
Indeed, the Israeli Supreme Court has become a constitutional court, and has acquired
even hegemonic position in the Israeli political setting. But the Court has always
taken into consideration institutional and cultural constraints. Therefore, whilst the
adjudication has been extensive, the judicial intervention has always been rather
limited. Since the religious parties enjoy veto position in parliament such a political
control serves their interests and will encourage, not reduce the influence of religious
background on the religious justices.
The author suggests another problematic solution- he aspires that originalism will
dominate judicial interpretations. But, contrary to the author presumption,
originalism is not a more ‘objective’ hermeneutics.
Going back to the original
fundamental documents of the state of Israel, like its declaration of independence, will
certainly encourage fierce debates and contentions among the justices, and between
secular and religious justices.
Last, Sapir offers that constitutional documents will
be very specific and clear. But what is very detailed and clear? The definitions are
also political and subjected to cultural and institutional conflicts.
The aspiration to
draft such constitutional documents is bound to spur a great deal of political conflicts
that will be brought to court. The justices will have to rule in accordance to their
identities and worldviews, and particularly based on their religious identities.
Contrary, my perspective is that effects of justices’ personal worldviews over their
rulings should not and can not be exclude or balanced since such characterizations
and worldviews are part of hermeneutics. Attempts- as Sapir suggests- to
de-politicize the judiciary may impose the political administration over the judiciary.
The question is not politics or law but what kind of politics we want to see in law.
One can not exclude politics from law without destroying the judiciary; one has to
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ponder which society and politics we want to advance in and through law.
Since no
one concept exists, law is a fascinating battle- field. Courts exist in order to enable
wars of ideas instead wars with weapons. Moreover, since the Israeli Supreme Court
has become a constitutional court, communal representation in court is a democratic
need, a prerequisite for the court to serve as democratic institution in its political
realm.
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